I argued from the beginning that Obama was not a pre-emptive president. He had the chance to be one, but he (and/or the Dems in the Senate) made too many mistakes in his first couple of years.

That said, I think Skowronek's whole categorization system has fallen apart since at least 1996. When minority candidates succeed to the Presidency, it throws off the whole idea. That's particularly true here, where Hillary will end up with 2 million plus votes more than Trump. Had she become president, as in any sane system would have happened, then it might be productive to continue to use Skowronek's terms. It doesn't make sense any more.

That's putting aside my disagreements with a classification system which treats Reagan as the "pre-emptive" president, when it's clear that was Nixon. Nixon's status as one got masked by Watergate; if that hadn't happened, Reagan would almost certainly have followed Nixon in 1976.

Trump might well be "disjunctive", but Steve Bannon has a goal of creating a white nationalist, authoritarian regime and I wouldn't put it past him to succeed. You can term that however you want -- it won't matter any more.
 

"but Steve Bannon has a goal of creating a white nationalist, authoritarian regime"

I suspect I'm going to be saying this a lot over the next few years: "Dispense the Koolaid if you must, but, please, don't drink it yourself." From what I can tell, Bannon has no such goal. Democrats are just turning the usual "Smear the Republicans as racist monsters." tactic up to 11 this year. I guess it's too be expected; If you declare Bush to be Hitler, (They did.) and he doesn't march people into gas chambers, then the next Republican, to be worst, must be the Anti-Christ. It's the inevitably escalation of unrealistic propaganda.

The basic problem with Skowronek's system is that the population is just too small and heterogeneous to reliably derive any sort of system. Each new administration is a new thing in significant ways. And even if that weren't so, attempting to categorize administrations in advance would be a fool's game.
 

Of course, Hoover appointed Charles Evans Hughes, Owen Roberts, and Benjamin Cardozo. I would be thrilled--but shocked--if that is who Trump appoints.
 

I can see Trump appointing all 3. He doesn't know they're dead.
 

Hoover was a reasonable sort that could have been a perfectly decent President historically if the Great Depression didn't interfere.

Some presidents can't handle certain things while being able to run the executive generally satisfactorily. Thus, his ability to pick perfectly fine justices. I guess some President might be lousy but have a decent skill at just that. But, I think Hoover had more than that going for him.

I don't know how much of a shot Obama had to be a "pre-emptive president," especially since he was voted in exactly for the thing he tried to do -- find a means to compromise and obtain some Republican support on certain things. But, I won't try really to work within these labels. I'll just say I think he was a fine President all things considered.
 

I have problems with Skowronek's strong man view of American history. Presidents rarely influence the political order to the extent Skowronek assumes and messy historical reality often fits in more than one of his neat presidential categories.

For example, Obama won election as a pre-emptive candidate who distanced himself from the past failed order of his party, but he governed as an agent of reconstruction and freely exercised the power of the presidency. In doing so, however, Obama caused his party to suffer the worst electoral defeat since that ultimate disjunctive president, Herbert Hoover.

The reality is that Obama and his Democrat Congress were operating outside of our small "d" democratic system; first by enacting laws in opposition to a majority of the electorate; then, after the voters fired the Democrat Congress, Obama ruled by decree through the bureaucracy in violation of multiple laws.

Heaven knows what a Trump administration will do. One can argue, however, the GOP has now completed a lengthy political reconstruction where it now dominates every level of elected government and all the elected branches of the national government. The GOP is now the strongest it has been since 1928.

This inconvenient fact belies the wishful thinking that Trump is a disjunctive president during the final stages of a crumbling Reagan political consensus.


 

One can argue, however, the GOP has now completed a lengthy political reconstruction where it now dominates every level of elected government and all the elected branches of the national government.

And yet it is a minority party. It's Presidential candidate has outpolled his opponent once this century. Though it holds a majority in the Senate and House its legislative candidates received fewer votes than their Democratic opponents. The population of states with two Democratic Senators exceeds that of states with two Republicans by a third.

I would say this is untenable, and in part the result of what is not far from being a slow motion coup, involving gerrymandering, voter suppression, and a Supreme Court that, in 2000, simply concluded that it wanted Bush to be President - counting votes would have done him irreparable harm, it seems.

This process was much abetted, of course, by the silliness of our election processes.
 

SPAM I AM! displays once again his mis-history with this:

"For example, Obama won election as a pre-emptive candidate who distanced himself from the past failed order of his party, but he governed as an agent of reconstruction and freely exercised the power of the presidency. In doing so, however, Obama caused his party to suffer the worst electoral defeat since that ultimate disjunctive president, Herbert Hoover."

Obama came into office following 8 years of Bush/Cheney, dumping on Obama the 2007-8 Bush/Cheney Great Recession. Obama's job was to get America out of that deep hole left by Republicans. And the 8 years of Clinton left for Bush/Cheney a surplus that quickly disappeared with tax cuts, wars, etc, etc, all leading to the Bush/Cheney Great Recession. In what sense does SPAM use "reconstruction"? Based on SPAM's past at this Blog, I'd say it's a tad racial. From day one, Republicans walked in lockstep to challenge everything Obama tried to do, causing Obama to utilize the power of the presidency. Recent posts at this Blog and elsewhere challenge Republican charges that Obama's actions went overboard, beyond statutory limits. And a reminder about Herbert Hoover: he was preceded by Republicans Harding and Coolidge and the event leading to the Great Depression was late in the first year of Hoover's term. Hoover could not recover in his remaining 3 years, and even with FDR, the hole of the Great Depression was so deep WW II pulled us out of that deep hole. SPAM of course would like to hide Harding/Coolidge contributions to the situation in which Hoover found himself. And SPAM ignores the popular vote, with Hillary in a position to claim almost a 2 million vote advantage over the EC victor described over and over and over again by SPAM as a fascist.
 

Sandy Levinson has been a Cassandra (for those who don't know their classics, this is not a good thing really) on how the constitutional system in place furthers the "minority party" problem, including population in the Senate.

This latter point is worthy of more notice than it is getting, a sort of hidden truth since it requires looking at the numbers. The popular vote for one office (POTUS) is a lot easier to focus upon. Democrats are hurt in state legislatures here too. They start with an uphill battle because there simply are more thinly populated red states, even though there are a few positive things to cite there state-wide at least. This affects House races. Gerrymandering only can be taken so far, but once the decks are stacked against you, every little bit hurts.

"Silent majority" indeed. This really doesn't change the basic thing that it is a shame and a breakdown of civics that someone like Trump was elected. The election was a test, one too many failed. But, putting aside those who like land to win over people, it's a structural problem that continues to make the Democratic Party's job that much harder.
 

BD: One can argue, however, the GOP has now completed a lengthy political reconstruction where it now dominates every level of elected government and all the elected branches of the national government.

byomtov: And yet it is a minority party. It's Presidential candidate has outpolled his opponent once this century.

Sure.

Over the past two decades, the state governments, the House and the Senate has been shifting to the GOP. Obama dramatically accelerated this process over the past four election cycles. In 2016, a 2-3 million voter majority elected completely GOP governments in half of the states, GOP legislatures or governors in 2/3 of the states, a GOP House supermajority and comfortably reelected a GOP Senate in a year where 2/3 of the contested seats had GOP incumbents.

The presidency has been the only bright spot for the Democrats during this period of time and even that office has regularly rotated between the two parties every two cycles. The ongoing concentration of Democrats in a smaller and smaller, largely urban geographic area is placing the Democrat presidential candidates at an increasing structural disadvantage. Under the electoral college, the Democrat has to run a successful national campaign. As Clinton discovered, the Democrat cannot win a national campaign by getting the majority of your votes from CA, NY and MA, even if you do edge the Republican in the total vote.

 

The presidency has been the only bright spot for the Democrats during this period of time...

IOW, national elections confirm my position.

Of course, if you think that urban voters ought to count less than rural ones you have a point. Otherwise, not so much.

Whatr you are doing is defending an irrational system, because it benefits your party, OK.But that doesn't make it rational.
 

"I think Skowronek's whole categorization system has fallen apart since at least 1996. When minority candidates succeed to the Presidency, it throws off the whole idea. That's particularly true here, where Hillary will end up with 2 million plus votes more than Trump. Had she become president, as in any sane system would have happened, then it might be productive to continue to use Skowronek's terms. It doesn't make sense any more."

+1

"That's putting aside my disagreements with a classification system which treats Reagan as the "pre-emptive" president, when it's clear that was Nixon. "

Also +1

"declare Bush to be Hitler"

And of course every Democratic President is compared to Stalin, etc.,

"then, after the voters fired the Democrat Congress, Obama ruled by decree"

Of course, as usual, fails to acknowledge that in the election after that Obama himself was re-elected...

"The GOP is now the strongest it has been since 1928."

In 1928 the Senate was 56 R, 39 D. Today, it's 51 or 52 R. In 1928, the House was 270 R, 164 D. Today it's 239 R, 194 D.

"The population of states with two Democratic Senators exceeds that of states with two Republicans by a third. "

"putting aside those who like land to win over people, it's a structural problem "

Well said. Our system is an undemocratic mess.


 

I've said I don't think Trump is any Mussolini, more like a Berlusconi.

Maybe I'm especially sanguine, but I really think a Trump presidency is going to surprise many people in how not-awful it is and also, perhaps relatedly, how non-movement conservative it's going to be. Trump is a NYC elite. He's not going to come in guns blazing for gays and such like movement conservatives want. In recent days he's said he's going to focus on deporting criminal immigrants (which was already being done), that he doesn't want to challenge gay marriage, and that his first main project is an infrastructure bill!!! Don't get me wrong, his very existence as President will make liberals mad, and many conservatives want this more than anything else, but policy-wise, they might be surprised at how little they get!
 

"They do not get reelected and are typically very unpopular well before the next election."

This is not only not certain, but maybe unlikely with Trump. Most of his political promises are vague ones, to 'renegotiate' this or that. The great thing about that is he can have meetings, find at least one change, and report back that he successfully 'renegotiated' them!
 

"Well said. Our system is an undemocratic mess."

Our system would be even more of a mess if it were more democratic. We're too heterogeneous a country to work as a pure democracy. As anything like a pure democracy. Massive undemocratic features are essential to civic peace.

That doesn't necessarily imply that the particular undemocratic features we have will achieve it, of course. But making the US just more democratic would probably end in civil war.
 

To that I'd say: grow up. Don't be a baby. Sometimes you get outvoted, learn to live with it. The alternative is rule by the minority.

No state, nearly all of which are heterogeneous, operates on such an undemocratic principle. Somehow Charlotte lives with what the NC government does without civil war, same with rural California. We can expect the same maturity from everyone else.
 

When it suits, some people complain when liberals use let's say the courts in ways that are "undemocratic," but then suddenly that isn't really an issue. Shrugs.

Talking Points Memo etc. note the "infrastructure bill" is not something Democrats should get excited about. As to other things, if "hell" is your frame of reference, things will go okay. Same sex marriage isn't suddenly going to end. Abortion for rape isn't suddenly going to be illegal etc.

But, there are various types of "awful." See, e.g., Bush and the Middle East. Mr. W.'s tone is a tad much. The fact ACA isn't simply going away, e.g., doesn't mean Republicans will affect it in various ways that for certain people will hurt. They matter too. Slow walking trans rights will hurt. Sessions in charge of voting rights nation-wise will hurt. Making it harder for people here all their lives not to have to live in the shadows hurts etc.

It is not just about liberals being "mad." Finally, it is not just Trump is there. Republicans now don't have to worry about vetoes. Unlike Trump, there are some quite skillful at getting things done. Plus, there is always the chance someone as unfit for POTUS will screw up totally. Anyway, conservatives will get another decade control of the courts at any rate. Not little.

Some will be upset since the hyped up promises cannot be fulfilled. Anyway, those 1928 Republican numbers was the beginning of the end for them for a while.
 

"To that I'd say: grow up. Don't be a baby. Sometimes you get outvoted, learn to live with it. The alternative is rule by the minority."

Tell that to Sandy, he's the one who needs to take that to heart.

You seem to neglect the possibility of expanding the domain of our lives that isn't subject to being voted upon. You like chocolate, I like vanilla, we don't need to vote and then eat the same flavor of ice cream!

You also seem to neglect the possibility of subsidiarity. You over there want this policy, we over here want that policy, we don't have to do the same thing.

"Somehow Charlotte lives with what the NC government does without civil war, same with rural California."

What a standard: As long as people don't go to war over it, it's ok. Replacing the consent of the governed with the resignation of the governed does not strike me as an advance. Rather, it strikes me as similar to welding the cover of the pressure cooker down, and figuring that everything is OK so long as it hasn't exploded. Yet. The thing groaning and warping is just immature carping, any little leaks just indicate a need to do a better job of sealing it.

This isn't a way to run a free society. It's a way to run an empire. Basically, the Democratic party wants to run the US as an empire, out of the cities, with everywhere else to be subjugated to their will, and mere lack of armed revolt judge success.
 

We have words to describe rule by the majority: republic, democracy. The word to describe rule by the minority is "oligarchy". Given who won this time, kakistocracy is also useful.
 

I should be careful regarding details here.

See, e.g., the back and forth in the past regarding funding for abortion in cases of rape. My comment was with respect to blanket bans, like pre-Roe v. Wade.
 

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Mr. W's comment taken literally would suggest legislatures have much more power than they really do -- but, from past comments, I realize he accepts there are many limits in place, including constitutional rights. With that preface ...

A late comment appeals to libertarian sentiments, but the Republican Party in control in D.C. and local areas aren't libertarians. They are okay with control even within the intimate nature of our lives in various respects. It's a matter of what concerns you. Voting rights, even without much need can be restricted more than gun rights etc.

As to "subsidiarity," the same applies. We have that in place now. New York City has discretion in various respects, while they don't in others. Again, it's a matter of details and preferences. Therefore, when a certain type of marriage deemed immoral is at issue, suddenly states could not have it without a serious penalty of non-federal recognition. A national ban of a certain health procedure. etc. A few "federalists" cried foul, but from many "crickets."

Finally, the debate there again is often what should be national, what local. Thus, Justice Breyer repeatedly supported the principle, noting it is better to have federal guidelines with state actors carrying them out in various cases than that being deemed "coercion" and instead having a bigger federal bureaucracy. Anyway, like Prof. Levinson, some don't like the Constitution and rather the powers be apportioned differently.

Talk of "empires" etc. is more sloganeering that has more heat than light.
 

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Mr. W: Our system is an undemocratic mess. The word to describe rule by the minority is "oligarchy". Given who won this time, kakistocracy is also useful.

Not rule by a minority, but rather rule by supermajority.

As noted in our Declaration of Independence, the purpose of government is to protect our liberties.

Based on their often personal experience with the colonial and state legislatures, the Founders knew unfettered representative democracy could be every bit as tyrannical as the British monarch.

One of the republican principles the Founders applied to check the tyranny of the majority was to create as many different constituencies as possible for our elected representatives so that the national government would truly be national. The House represented localities, the Senate represented states and the president represented a hybrid of the two - states weighted by population. An effective supermajority of these constituencies was required to exercise power over the people.

One of the best studies of the history and theory behind republics I have come across is William Everdell's The End of Kings. I highly recommend it

 

You also seem to neglect the possibility of subsidiarity. You over there want this policy, we over here want that policy, we don't have to do the same thing.

Not always, but lots of times we do. If we want a tax system to fund the federal budget, for example, it has to apply uniformly. Now, given that there are disagreements, surely the general rule ought to be that the majority choice rules. If we are worried about environmental matters, then there has to be a way tell one state it can't dump its waste next door, or in the river. And so on. Lots of things just don't lend themselves to state or local control.

Basically, the Democratic party wants to run the US as an empire, out of the cities, with everywhere else to be subjugated to their will,

Please stop pretending that "the cities" are somehow alien territory not inhabited by "real Americans." The cities are where lots of people live. Your conception that somehow they shouldn't have an equal say - yes, equal - is completely irrational. If more people favor one policy than the other, at the national level, why should the minority get its way, just becaiuse of their addresses. That is insane, and no Federalist romantic fantasies will make it sane.
 

If more people favor one policy than the other, at the national level, why should the minority get its way, just becaiuse of their addresses. That is insane, and no Federalist romantic fantasies will make it sane.

The actual Federalists were, of course, firmly committed to the principle of majority rule:

George Washington, Message to the Third Congress, November 19, 1794 (discussing the Whiskey Rebellion): “to yield to the treasonable fury of so small a portion of the United States would be to violate the fundamental principle of our Constitution, which enjoins that the will of the majority shall prevail.”

Thomas Jefferson, First Inaugural Address (March 4, 1801): “[I]t is proper you should understand what I deem the essential principles of our Government.... absolute acquiescence in the decisions of the majority, the vital principle of republics....”

James Madison, Federalist 58: “It has been said that more than a majority ought to have been required for a quorum [in Congress]; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale.

In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.” My emphasis.

Alexander Hamilton, Federalist 22: “Its [the Articles of Confederation] operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. … To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) is, in its tendency, to subject the sense of the greater number to that of the lesser. … The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater….”

And just to pile on, Lincoln in his First Inaugural: : “A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.”

 

byomtov: Please stop pretending that "the cities" are somehow alien territory not inhabited by "real Americans." The cities are where lots of people live. Your conception that somehow they shouldn't have an equal say - yes, equal - is completely irrational. If more people favor one policy than the other, at the national level, why should the minority get its way, just becaiuse of their addresses. That is insane, and no Federalist romantic fantasies will make it sane.

You are missing the point.

The government generally should not have any say on how we live our lives and, when they do, that exercise of government power should represent a national consensus. Not an urban, suburban or rural; not an east, west, north or south; but rather a national consensus.


 

Mark:

No provision of the Constitution permits minority rule. None.

Ruling is imposing government power over the people.

Preventing a transient majority from ruling is not the same as a minority ruling.
 

And if there is no "national consensus?" I haven't noticed too many.

And what is the requirement? Suppose we say 65% agreement is close enough. Is it wiser to require 65% of the population to agree, or the inhabitants of 65% of the land area? You seem to favor the latter, which makes no sense whatsoever.

Try to understand, Bart, that your view quite clearly devalues the opinions of those who live in cities. They are absolutley entitled to have their views carry the same weight as rural dwellers. Moving from Wyoming to California should not reduce one's influence over national policies, no matter what bizarre theories you hold.


 

No provision of the Constitution permits minority rule. None.

OK. I'm out of here. This is an utterly ridiculous statement.

No point arguing with someone whose understanding of simple things is shaped by funhouse mirrors.
 

Mark Field's quotes just goes to show that sloganeering is easily answered.

A major concern in antebellum times was a proper division of state and national. There was also various checks and balances so a simple majority system wasn't in place as compared to a more straight majoritarian parliamentary system especially one with parliamentary supremacy. But, at some point, majority ruled.

The quotes themselves show the limitations of quotable quotables. Jefferson spoke of "absolute acquiescence in the decisions of the majority," but what majority? Did he oppose the Senate, which blocked "decisions of the majority" in some cases? Did he blithely support "a majority" in Congress passing a national bank?

Or, Hamilton, "a minority a negative." The Constitution does that in certain cases. A minority of one in fact can veto and a supermajority is necessary to override it. Of course, "Unanimity is impossible." So, we are left with details. For instance, PPACA. A majority plus a supermajority with the support of the POTUS supports something. A minority in one House STILL refuses to even let the majority tweak it to clean up various things.

Or, the filibuster generally. Sparingly, it respects minority concerns in those areas where a minority has strong special feelings and interests. This in the long run can benefit different factions & is defensible on some level. But, it can be abused, it being used even when a supermajority supports something like a district court judge, but is used in some partisan way, maybe simply to screw the POTUS. At some point, majority rule -- tempered by various checks -- has to work out even if some small minority is upset about it.
 

byomtov said... And if there is no "national consensus?"

Then the government does not impose its power over us.

THIS is what drives totalitarians crazy about our Constitution and why they work to tear it down.

BD: No provision of the Constitution permits minority rule. None.

byomtov: OK. I'm out of here. This is an utterly ridiculous statement.

You are free to offer an example of minority rule.

Remember, minority rule is where elected representatives of a minority of the voters enacted a law.

Do you get the point yet?
 

Then the government does not impose its power over us.

You mean it makes no decisions whatsoever? That a minority is free to block any action? That's insane. The decision not to act in the face of a problem is a decision, and you are giving the minority thge power to impose that. That's insane.

You are free to offer an example of minority rule.

A minority of voters elect a majority of the Senate.

A minority of voters elect a majority of the House.

A minority of voters elect the President.

Do you get the point yet? I doubt it.
 

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BD: Then the government does not impose its power over us.

byomtov: You mean it makes no decisions whatsoever?

None.

The decision not to act in the face of a problem is a decision

True, but it is not government rule.

and you are giving the minority thge power to impose that. That's insane.

That is freedom.

I understand that totalitarians generally consider deferring to freedom to be a form of insanity.

BD:You are free to offer an example of minority rule.

byomtov:
A minority of voters elect a majority of the Senate.
A minority of voters elect a majority of the House.
A minority of voters elect the President.

Never happened.

Even if this happened in theory, the requirement these three different minorities agree on a law requires effective supermajority rule.
 

SPAM I AM! seems to be enthralled with how our Constitution call elect as a President a person he has described over and over again as a fascist.
 

Bart,

This is ridiculous.

First of all a minority in control of government can clearly make a rule as well as not make one. Are you suggesting that a minority in control would never impose any rules, while a majority would? That is one of the stupidest things I ever heard.

Second, not all issues are questions of whether to make a rule or not, but rather what rule to make. What should the tax rate be? If there is agreement that ther eshould be a tax then a minprity in control will get its way.

Third, rules are not per se bad. Traffic lights prevent accidents.

No. It's not freedom. It's idiocy.

I understand that totalitarians generally consider deferring to freedom to be a form of insanity.

Bart, I know more about totalitarianism than you can dream of. If you think that I, or liberals in general, are totalitarians you need to wake up.


You claimed that no provision of the Constitution permitted minority rule. I showed, quite simply how it did. Now you say, "Well, maybe but it never happened." That doesn't mean it can't. Besides Hillary's majority in 2016, you might note that Democrats running for the Senate have outpolled Republicans by more than 20% in the past three elections, including a 45 million to 39 million margin in 2016.

Even if this happened in theory, the requirement these three different minorities agree on a law requires effective supermajority rule.

So it can happen, after all.

But it wouldn't imply supermajority rule. The same idiotic mechanism that lets a minority of the population elect a President allows a minority to control the Senate. Compare Trump states with states with GOP Senators. The House has some protection, but it's thin.


 

byomtov: Are you suggesting that a minority in control would never impose any rules, while a majority would?

I am suggesting our system makes it nearly impossible for a minority to be in control.

The majority coalition of districts passing a bill in the House, will not cover the same voters as the states passing the bill in the Senate, and both will not match the same voters who elected the president. Thus, in order to enact piece of legislation, the national government needs the cooperation of a coalition of elected representatives representing a super-majority of voters.

Second, not all issues are questions of whether to make a rule or not, but rather what rule to make. What should the tax rate be? If there is agreement that ther eshould be a tax then a minprity in control will get its way.

Doesn't matter.

If there is supermajority support to establish a national sales tax, but not on the tax rate, then the government will not establish the sales tax.

If there is not supermajority support to change a previously established income tax rate, then the previous supermajority enacted tax rate remains in effect.

In neither case does a minority get to enact new or change old law.
 

We are very close to a minority being in control. And you seem to have abandoned the idea that the Constitution doesn't permit that. Care to admit you were wrong?

The majority coalition of districts passing a bill in the House, will not cover the same voters as the states passing the bill in the Senate, and both will not match the same voters who elected the president.

This is just wrong, unless you mean they are not exactly the same. Look at Trump's electoral votes. Look at the GOP Senate makeup.

If there is supermajority support to establish a national sales tax, but not on the tax rate, then the government will not establish the sales tax.

Ridiculous statement. Why? If a minority in control wants a 5% national sales tax why won't they pass it? And if there is disagreement over whether it should be 5% or 6% it's vastly more likely to be 5.5% or so than zero. You're just spouting nonsense.
 

BD: The majority coalition of districts passing a bill in the House, will not cover the same voters as the states passing the bill in the Senate, and both will not match the same voters who elected the president.

byomtov: This is just wrong, unless you mean they are not exactly the same. Look at Trump's electoral votes. Look at the GOP Senate makeup.

They are not exactly the same. There is a percentage of voters represented in each body which does not match the others. You need the non-common voters to enact the legislation.
 

I don't agree with the whole of Prof. Levinson's analysis and definitely am wary about some sort of constitutional convention, but at some point his overall concern about anti-democratic aspects of the Constitution getting out of control is hard to ignore. You deal with problems, especially when you don't think change can occur, but as the Declaration of Independence notes, at some point it gets a bit much.

"Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed."

Simply majority rule is not appropriate here. Think small scale. Five friends. They decide where to go to dinner. Given their druthers, three would go to a non-kosher establishment, but one is an observant Jew. They respect this is more important than their preference otherwise, though being friends with such a person influences their preferences in the first place.

Or, maybe one strongly doesn't like a place, perhaps because their ex works there & it was a real bad relationship. They want to go as a unit but the person says "I'm going to 'filibuster' here because I really feel strongly. If four of you still want to go, I'll go along, but you better really want to go." If the other four insist merely because they have the power to do so, things will get uncomfortable. OTOH, if the one uses their filibuster card too much, in an unfair way, it is a problem.

Not in for everything he says, I think it is time -- like Sandy Levinson notes -- to strongly support making clear that when a minority skewers the system too much, especially when the result is President Trump & some of the stuff the Republicans are doing these days (principle is made clearer when consequence can be shown), we need to fix it somehow. At the very least, when a minority is going to have a special leg up, if they go too far, it has to be rejected. The SYSTEM is a problem, not just one or more of its component parts. We saw during the election just criticizing a personality wasn't enough.

So, even though in our system mere majority rule is not the rule, the fact a majority supports the Democrats matters. Surely, if the tides was turned, Republicans would say that. They toss out "popularity" when it suits them, just like when it suits courts etc. that are "undemocratic" (for instance, to protect certain rights that a majority might ignore) are deemed problematic. And, respect of the minority matters in various cases, but that too can be abused.

 

This notes that the Republicans won the popular vote in the House of Representatives:

http://www.usatoday.com/story/news/politics/onpolitics/2016/11/10/democrats-won-popular-vote-senate-too/93598998/

It's somewhat hard to tell here since the system in place sets up certain candidates (a safe seat, e.g., will lead to no or token opposition in various cases) etc. that affects the final vote. And, Republicans are going to have an edge in state races too, since there are more thinly populated red leaning states.

Plus, big picture, I think there are two parties: a moderate party (mostly Democrats but has a few Republicans, who can win state-wide offices in blue states) and a conservative one (mostly Republican).
 

Joe,

I don't think your examples quite work.

In both cases, it easy for the party to split up, and the split is not permanent. It lasts for one evening. Everyone goes where they like and they are all still friends and will get together again for other activities. Alternatively, given the strength of he preference, they agree to go to the kosher restaurant, or to avoid the one the picky individual dislikes. But this is a matter of courtesy, not law, and deals with a very narrow situation. In the second case, further, avoiding one restaurant still leaves a universe of others.

Political issues are not like that. Should we go to war? Who should suit on the Supreme Court? What rules shoudl be put in place to protect the environment? The answers have a long-lasting significance.
 

Political issues are not like that, which is a good reason to be very wary about making any issue a political issue, unless it's so blasted important that the huge downsides are worth accepting. I think that is actually the source of our difficulties, that too many things have become political issues, where somebody must win, and somebody must lose. It's not enough to get SSM, you must bake that cake or else!


On amending the Constitution, I'm game. Somewhat terrified about what amendments might happen, actually; I doubt we'd get a constitution I like as much as the one we have now. But, we don't really have it anymore, there are so many work-arounds and 'interpretations' in effect. (A common joke in conservative circles: "The Constitution has it's problems, sure, but it's better than what we have now.")

A constitutional convention, and major revisions, would destroy any excuse for 'living constitutionalism' for a generation at least, and give us a chance to patch the weaknesses that have been identified and exploited to circumvent the Constitution's limits on governmental power.

A somewhat less desirable constitution which was actually in force for a while might be preferable to our current constitution, which is rather nifty, but in major respects not actually being followed.

It does seem somewhat strange, though, to see a liberal discussing the amendment process without noting that the right is MUCH better positioned to control it than the left.
 

Political issues are not like that. Should we go to war? Who should suit on the Supreme Court? What rules should be put in place to protect the environment? The answers have a long-lasting significance.

The "one evening" is a snapshot. The group constantly is making decisions with such concerns in mind. The restaurant example, e.g., is comparable to things that have a long-lasting significance and is a matter of law -- religious accommodations. And, the decisions we make in a small group can have long-lasting significance in general. A purchase of a home, moves for a career, people who serve in positions that aren't SCOTUS but has some significance to others etc.

I'm guided in my example somewhat by Lani Guinier, who has written how decision-making should not be purely majority rule, and provided comparable personal examples. Of course, they aren't going to be totally on point, but I do think it helps put things in a sort of personal more reachable frame of reference.


 

I will now separately deal with Brett's reply.

Private cases -- sale of cakes in public accommodations not quite private -- are in certain cases worthy of even more care than various public things. A simple majority can pass a local ordinance. Caring about the religious needs of a person might warrant more than that.

We have various processes in place to temper majority will, as I noted above, so the concern here is degree. At some point, with the processes in place, a tempered majority should govern. Brett repeatedly says this -- he criticizes "the left" when they support the courts doing "undemocratic" things. He doesn't only do this when the thing was passed by clear super-super majority processes. So, you know, it's tricky, right?

And, let's be clear here, it is not like Brett was "well SSM is granted, but the cake thing is too far." I don't recall him saying the Supreme Court was correct to determine Congress inhibited federalism by singling out same sex marriage in DOMA. If people were only narrowly concerned with expressive conduct, it might raise tricky questions (that being rather open-ended), but fewer people would be wary. The fact certain groups are being singled out here is a problem. Again, Brett is concerned about that in other contexts.

Amendments is something various people can support, differing in details. Note Brett speaks of "conservatives," not "libertarians." Anyway, any Constitution in place in this country, including new amendments, will be applied in a "living" way. It didn't take "a generation" for that to occur the first time. It being put in place resulted in unexpected developments immediately. The various groups in control of writing it wrote it in a certain way that was open-ended and applied in a "living" way. This was intentional and predictable.

I'm wary of a constitutional convention of the sort Sandy Levinson wants for various reasons, so am in no way unwilling to look to who would "control" things there personally. And, part of change in our system doesn't come only from amendments. It comes from changing understandings of the things in place now.
 

Joe: I think there are two parties: a moderate party (mostly Democrats but has a few Republicans, who can win state-wide offices in blue states) and a conservative one (mostly Republican).

Since Reagan, the parties have sorted themselves ideologically.

The Democrats are now a "moderate" EU labor party. Obama pretty much killed off the "conservative Democrat" brand by making it obvious that Democrats will always govern left no matter how they campaign.

The Republican establishment would fit in with an EU conservative party.

The majority of the Republican base ranges from libertarian to Eisenhower progressive (social insurance within a budget) and are to the "right" of the Republican establishment.
 

"I don't recall him saying the Supreme Court was correct to determine Congress inhibited federalism by singling out same sex marriage in DOMA."

Well, no. My position on this is that the judiciary saw the states refuse to ratify the ERA, and decided that, Article V be damned, they would not let that stand. And so they proceed to claim that the 14th amendment already embodied what the failed ERA would have put in the Constitution. A thoroughgoing exercise in bad faith.

Now, having been emboldened, they've moved on to claiming it embodies what opponents of the ERA regarded as their most cutting attacks on it, and what it's proponents violently denied it implied. (Though likely the denial was insincere.)

The DOMA I viewed as merely confirming the meaning of a word; Rather like passing a defense of Rain act if the courts suddenly up and decided that dust storms would legally be referred to as "rain".

I was at most mildly opposed to the legalization of SSM as a policy, on the basis that "marriage" had a long, long established meaning, and that if homosexuals were to get some counterpart, it ought to have its own name. It was the procedural matter, the WAY this was crammed down the public's throat in the face of multiple democratic exercises against it, that really pisses me off.
 

The best part of a new constitution is not that it would stop, even temporarily, the standard legal principles of interpretation. As Joe notes, those were intended from the beginning, and they're inevitable anyway in any republican system. No, the best part is that for a generation or so we wouldn't have to listen to "originalists".
 

Mark Field: The best part of a new constitution is not that it would stop, even temporarily, the standard legal principles of interpretation. As Joe notes, those were intended from the beginning, and they're inevitable anyway in any republican system. No, the best part is that for a generation or so we wouldn't have to listen to "originalists".

If we go to the trouble of substantially amending the Constitution, one of the amendments needs define and limit judicial review to original meaning interpretation and, in cases where the language is vague, to interpret the language against there reviewed law and in favor of individual liberty. Otherwise, progressive courts will continue to rewrite the document under the guise of interpretation and none of the amendments will matter.
 

Bart, such a clause would be, in the end, futile. Might slow things a bit, that's all. No, "You must interpret this document in good faith!" clause survives bad faith...

The real answer, I think, is to give the states more of a role in the selection of the federal judiciary, so that judges who are dismissive of federalism concerns can't get confirmed.
 

Joe,

But the solution to the restaurant issue is not to say that the Orthodox Jew can make everyone go to a kosher restaurant. Isn't it rather to say that he can go there by himself, or with others who are indifferent on the matter.

The way to protect minority viewpoints is to specify areas that are not subject to majority control. It us not to construct a system whereby a minority can gain control of the government and resolve issues in its favor. The latter is what we have today.


 

The states have always had a role in the appointment of judges. It's called "the Senate". Plus, of course, the EC.

I do appreciate the openness of the "states rights" proposal. Nobody should be in any doubt what's intended.
 

No, the states *used to* have a role in the appointment of judges. Then came the 17th amendment.

You're right, nobody should have any doubt that I intended to solve the "No man should select the judge in his own case." conflict of interest involved in federal officeholders selecting the judges who decide how much power they get to exercise.

That "any disagreement with me is proof of racism" bit doesn't work anymore. Didn't you notice that a couple weeks ago?